Decided on September 20,1972

Valluri Narasimhamurthy and another Appellant
Chavali Venkateswarlu and others Respondents


A.V. Krishna Rao, J. - (1.) The plaintiffs 2 and 3 are the appellants. The deceased 1st plaintiff filed the suit for partition as a purchaser of ⅔rd share of certain joint family properties and for separate possession of a ⅔rd share. The trial court decreed the plaintiff's suit for partition. On appeal by the defendants, the decree of the lower (appellate) Court was modified by granting the plaintiffs only a decree for a 4/9th share in the suit properties and a preliminary decree to that effect was passed. The plaintiffs 2 and 3, legal representatives of the 1st plaintiff, have appealed to this court contending that the decree passed by the trial court should have been confirmed by the appellate court and the modification is contrary to law.
(2.) The relevant facts are, that the 1st plaintiff purchased ⅔rd share in the plaint scheduled properties from Chavali Sriramamurthy, Suryanarayan and Ganapathi Sastry. One Chavali Narasimham had two wives. The 1st defendant in the suit is his son by the first wife. The allenors of the 1st plaintiff are the sons of the said Narasimham by his second wife. In 1924, there was a partition between Narasimham and his sons, Venkateswarlu (1st defendant) and Sriramamurthy evidenced by a registered partition deed Ex. B-2 dated 30-9-1924. By the date of the partition, Ganapathi Sastry and Suryanarayana were not born. In the said partition, the property was divided into three shares and certain house site and house were kept joint, subject to certain limitations placed thereon in the document and the rest of the property was to be enjoyed by the sharers with absolute rights. The first plaintiff who had purchased the interest of not only Sriramamurthy, but also that of his two brothers, who after the death of their father Narasimham, became entitled to a ⅓rd of the property. The whole controversy in the appeal now relates to the construction of Ex. B-2. The contention of the contesting 1st defendant is that Sriramamurthy could not validly alienate his interest in the joint property as per the recitals in Ex. B-2. If his contention is tenable, then the decree passed by the appellate court is correct. If not, the decree passed by the trial court is correct.
(3.) The question depends upon a ture and proper construction of Ex. B-2. In so far as relevant, the recitals may be freely trauslated thus: 'Venkateswarlu (1st defendant) raised a dispute and wanted to divide himself and as such all the property which our family has, has been divided as per the particulars below. In the entire property, ⅔rd was to go to Narasimham and the minor Ramamurthy and ⅓rd should go to Venkateswarlu (1st defendant) particulars of the property of the value of Rs. 3,000/- Kept joint (Then follows a description of the house and the boundaries thereof). All the fruit trees and constructions should be kept joint. Narasimham and his minor son having a ⅔rd share and Venkateswarlu (1st defendant) having a ⅓rd share. The enjoyment should be joint bearing the expenses etc., jointly. In respect of lands, the respective sharers should pay the circumstances. The sharers shall not have right to alienate their shares in the house site and house to stangers in any manner what-so-ever, these sharers shall not have any right to permit. Non-brahmins to reside in the house and enjoy the same in this manner. The rest of the entire property shall be enjoyed by each sharer with full rights of gift, sale etc., from son to grand son as they please".;

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